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Arroyo v. Doherty

May 28, 1998

ABIGAIL ARROYO, PLAINTIFF-APPELLANT,
v.
LYNN DOHERTY, DIRECTOR, ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; BOARD OF REVIEW, ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; AND WALLY'S KOSHER DELI, DEFENDANTS-APPELLEES.



Justice Wolfson, Cerda, P.j. and South, J., concur.

The opinion of the court was delivered by: Justice Wolfson

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.

HONORABLE LESTER A. BONAGURO, JUDGE PRESIDING.

Was Abigail Arroyo (Arroyo) fired from her job as a cashier at Wally's Kosher Deli or did she quit? She was denied unemployment benefits because the Department of Employment Security Board of Review decided she left her job without good cause. The Circuit Court upheld the Board's finding. We believe the record demonstrates she was fired. For that reason we reverse the Board's finding and remand for a new hearing into whether she was fired for misconduct that makes her ineligible for benefits.

FACTS

In 1995, Arroyo began working as a cashier at Wally's Kosher Deli (the deli). While employed at the deli, Arroyo became pregnant. On June 14, 1996, approximately eight months into her pregnancy, Arroyo experienced complications and was admitted to Illinois Masonic Hospital, where she gave birth to a still-born child. Arroyo was discharged from the hospital on June 18, 1996, with orders from her doctor to refrain from work for six weeks.

On July 23, 1996, Arroyo returned to the deli to get her last paycheck and inform her employers, the deli's owners Harry Friedman and Steve Brin, she could resume work. Brin told Arroyo she was fired.

Arroyo filed for unemployment benefits, and the deli filed its objections. Specifically, Brin alleged:

"The claimant, Abigail Arroyo was on our schedule to work as of 6/14/96, she again appeared at our store to pick up last check for the week of 6/3/96 on July 24th[,] 1996. We did not hear from Miss Arroyo for almost 40 days[.] If someone who is employed by you does not tell us [sic] what happened to themselves [sic] for 40 days we assume they have terminated voluntarily. She was a no show for more than 1 month."

(Emphasis added.)

The claims adjudicator interviewed Arroyo. The notes from this interview indicate Arroyo called Brin on June 15 and June 24, 1996. The notes also show Arroyo said, "I kept in contact with him [Brin]." The claims adjudicator interviewed Brin as well. The notes from this interview echo Brin's earlier claim that he did not hear from Arroyo during her absence.

On August 16, 1996, the claims adjudicator found Arroyo eligible for benefits from July 28 to August 10, 1996 (13 days) because she had not engaged in any misconduct. The deli appealed. The appeal fact sheet from the claims adjudicator's finding noted the "NATURE OF APPEAL" as "MC" (presumably "misconduct") and the "SECTION OF LAW/RULE" as "602(A)." However, the notice of hearing described one of the issues on appeal as follows:

"WHY WAS CLAIMANT SEPARATED FROM EMPLOYMENT WITH THE ABOVE EMPLOYER? IF DISCHARGED, WAS IT FOR MISCONDUCT IN CONNECTION WITH THE WORK? IF CLAIMANT LEFT VOLUNTARILY, WAS IT FOR GOOD CAUSE ATTRIBUTABLE TO THE EMPLOYER? SEE IUIA [Illinois Unemployment Insurance Act] SEC. 601 AND 602." (Emphasis added.)

On October 1, 1996, the parties appeared before referee William P. Naurich for a hearing. At the beginning of the hearing, the referee said, "Since it [the hearing] arises under 602(A) of the Act, I'll be asking Mr. Friedman questions first."

When asked whether he claimed Arroyo was discharged or quit, Friedman said, "My contention was that she didn't show up." However, he immediately changed his contention: "She was dis--discharged." Later, he said, "The reason [she was discharged] was is [sic] that she didn't show up to work for the last six weeks."

Friedman also noted Arroyo had received at least one warning for failing to call when she expected to miss work. Friedman admitted he eventually heard rumors from other deli employees about Arroyo. However, Friedman said, "*** I didn't know that she lost her baby for the first four weeks [of her absence], and I figured that we were at least owed a phone call from he[r] to tell us what the story was." Friedman repeated he did not hear from Arroyo between June 16, 1996-- when her mother left a voice mail message that Arroyo was "not feeling well" and would not work that day--and July 23, 1996--when Arroyo arrived at the deli to retrieve her last paycheck.

The referee next questioned Arroyo. Arroyo said, "I--I would say that I was discharged." She said Brin fired her, but did not give any reasons. Arroyo speculated as to a possible reason: "*** [T]hey [Friedman and Brin] had to hire their two daughters." Arroyo conceded she waited six weeks before returning to the deli, but insisted "*** I kept in contact with them."

Arroyo said she told Brin about her health problems when she returned and emphasized, "*** I called him before that" on June 19. Arroyo recounted a conversation with Brin:

"To call he said the 23rd when I picked up my check. Call me in two weeks and see if I have anything open for you. I said well I need my job Steve. I'm coming back. I'm okay now. It was a very hard, tough thing for me what happened to me."

The referee finally questioned Brin. Brin asserted he never spoke with Arroyo on June 19, and actually did not speak with her at all between June 13, the last day she worked at the deli, and July 23, 1996, the day she came for her last paycheck. Brin said he first heard about Arroyo's problems "through the grapevine" four weeks after she stopped working. Brin admitted he hired relatives to replace Arroyo, but noted "[t]hey are only here one day a week." Brin noted Arroyo had at least one ...


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